# Pankaj Singh v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1275
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-12
- **Case number:** Civil Misc. Writ Petition No.36163 of 2013
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-singh-v-state-of-u-p-and-ors-42686
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-226-
Cancellation of candidature-selection of
lecturer(Mechanical
Engineering)in
government
polytechnic-canceled
on
ground petitioner applied as OBC-but
could not provide certificate at the time
of interview-admittedly petitioner got
more marks than last candidate of
general category-held-illegal altogether
cancellation-not proper-direction to treat
general category-given.

Held: Para-8
Having considered the rival submissions
of the learned counsel for the parties as
also from the record, we find that by
virtue of General Instruction No.11, as
contained in the advertisement, the
candidature of the petitioner could not
have been canceled merely on his failure
to provide a certificate of his belonging
to Other Backward Class. By virtue of the
said instruction, the Commission ought
to have treated the petitioner as an
unreserved
category
candidate.
The
undertaking given by the petitioner
would not enable the Commission to
cancel the candidature of the petitioner
as an unreserved category candidate,
particularly, when the Commission is
bound by its own terms and conditions
laid in the advertisement. No doubt, the
Commission is at liberty to cancel the
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
candidature of the petitioner
as
a
candidate belonging to Other Backward
Class. But cancellation of his candidature
altogether
even
in
the
unreserved
category is arbitrary and against the own
terms laid by the Commission in the
advertisement i.e. General Instruction
No.11.

## Text

3 All] Pankaj Singh Vs. State of U.P. and Ors.
1275

30. There is another aspect of the
matter. The requirement to have a
registered lease deed for a fixed period of
at least 15 years has been inserted to
ensure certainity and continuity. The work
of distribution of LPG affects the
common public at large. It is the duty of
Oil Companies, appointing distributors to
ensure that they continue undisturbed for
long duration, so that the customer
attached to them do not suffer. If the
tenancy of the showroom is from month
to month, as in the instant case, and not
for fixed duration of 15 years (which can
only
be
created
by
a
registered
document),
there
will
always
be
apprehension
of
eviction
of
lessee
(Dealer/Distributor). It will thus not be in
public interest to press doctrine of
estoppel to compel BPCL to award
dealership
to
the
petitioner,
who
admittedly is not having registered lease
of fixed duration of 15 years.

31. In view of above discussion, it
transpires that though ground no. 1 on
which candidature of the petitioner has
been rejected is not sustainable in law, the
second ground is valid and legal and the
candidature of the petitioner has rightly
been cancelled as she did not meet the
minimal eligibility criteria of having a
registered lease on the date of the
application. A fortiori, no exception can
be taken to the ultimate decision of the
BPCL cancelling the candidature of the
petitioner.

32. In the circumstances aforesaid,
the writ petition fails and is hereby
dismissed. No order as to cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2013

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE MANOJ MISRA. J.

Civil Misc. Writ Petition No.36163 of 2013

Pankaj Singh
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri
Ashok
Khare,
Sri
Sunil
Kumar
Srivastava

Counsel for the Respondents:
C.S.C., Sri V.P. Varshney
Sri V.P. Mathur

Constitution
of
India,
Art.-226-
Cancellation of candidature-selection of
lecturer(Mechanical
Engineering)in
government
polytechnic-canceled
on
ground petitioner applied as OBC-but
could not provide certificate at the time
of interview-admittedly petitioner got
more marks than last candidate of
general category-held-illegal altogether
cancellation-not proper-direction to treat
general category-given.

Held: Para-8
Having considered the rival submissions
of the learned counsel for the parties as
also from the record, we find that by
virtue of General Instruction No.11, as
contained in the advertisement, the
candidature of the petitioner could not
have been canceled merely on his failure
to provide a certificate of his belonging
to Other Backward Class. By virtue of the
said instruction, the Commission ought
to have treated the petitioner as an
unreserved
category
candidate.
The
undertaking given by the petitioner
would not enable the Commission to
cancel the candidature of the petitioner
as an unreserved category candidate,
particularly, when the Commission is
bound by its own terms and conditions
laid in the advertisement. No doubt, the
Commission is at liberty to cancel the
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
candidature of the petitioner
as
a
candidate belonging to Other Backward
Class. But cancellation of his candidature
altogether
even
in
the
unreserved
category is arbitrary and against the own
terms laid by the Commission in the
advertisement i.e. General Instruction
No.11.

(Delivered by Hon'ble Rajes Kumar, J.)

1. We have heard Sri Ashok Khare,
learned senior counsel, assisted by Sri
Sunil Kumar Srivastava, learned counsel
for the petitioner, Sri V.P. Varshneya
appearing for the respondent no.3 (the
Public
Service
Commission,
U.P.,
hereinafter referred to as the Commission)
and
the
learned
Standing
Counsel
appearing for the respondent nos.1 and 2.
With the consent of the learned counsel
for the parties, this writ petition is being
decided finally, at the admission stage
itself.

2. Facts giving rise to the instant
petition are that the petitioner, pursuant to
an Advertisement No.6/2011-12 dated
17.03.2012, inviting
applications for
filling up several categories of posts in
different departments of the State as well
as posts of Lecturer in Government
Polytechnics, applied for consideration for
the post of Lecturer in Mechanical
Engineering, under the category of Other
Backward Classes. On screening, the
petitioner was found successful and was
called for interview before the Commission
on 20.11.2012. On the date of the interview,
an undertaking was obtained from the
petitioner that he would submit certificate of
his belonging to Other Backward Class on,
or before, 11.12.2012. This undertaking was
required as there was an objection with
regards to Other Backward Class Certificate
earlier provided by the petitioner. The
petitioner, consequently, obtained a fresh
certificate of his belonging to Other
Backward Class and submitted the same
before the Commission within the stipulated
period. However, again objection was raised
with regards to the certificate on the ground
that it was not in consonance with a
Government Order dated 02.07.1997. As a
result, the petitioner obtained yet another
certificate
dated
11.01.2013.
In
the
meantime, the result of the selection was
published
by
the
Commission
on
04.01.2013 and the petitioner was placed at
Sl. No.4 in the select list. However, against
the name of the petitioner, in the select list,
it was marked "provisional". To delete the
entry of "provisional" against his name, the
petitioner represented to the Commission
vide representation dated 13.05.2013. The
petitioner,
thereafter,
obtained
certain
information from the Commission under the
Right to Information Act, which was
supplied to the petitioner under office order
dated 03.06.2013. The information reveals
that as the petitioner had not deposited the
certificate of his belonging to Other
Backward Class, within 21 days from the
date of the interview, his candidature has
been canceled by the Commission.

3. Aggrieved by the cancellation of his
candidature, the petitioner has filed the
present writ petition on the ground that from
the information received under the Right to
Information Act it is clear that the petitioner
was placed in the select list by treating him to
be a candidate belonging to the unreserved
category, therefore, even if the petitioner had
failed to provide the certificate of his
belonging to Other Backward Class, within
the period provided in the undertaking, the
Commission could not have canceled his
candidature and, in fact, ought to have
considered
his
candidature
under
the
unreserved category.
3 All] Pankaj Singh Vs. State of U.P. and Ors.
1277

4. During the course of the
argument, the learned counsel for the
petitioner drew attention of the Court to
the General Instruction No.11 contained
in the advertisement, which formed basis
of the recruitment process. General
Instruction No.11, as contained in the
advertisement, reads as follows:-

"The candidate coming under the
reserved category, desiring benefit of the
reservation,
must
indicate
in
the
prescribed
column
of
the
on-line
application
the
category/sub-category
(one or more than one) whatever may be,
and if they fail to do so, they will be
treated like a general candidate and the
benefit of reservation will not be
admissible to them."

5.

Relying
on
the
General
Instruction No.11, the learned counsel for
the petitioner submitted that there was no
occasion to cancel the candidature of the
petitioner on the ground of his having not
provided the certificate of his belonging
to Other Backward Class within the
period provided in the undertaking but,
instead, the Commission ought to have
taken the candidature of the petitioner as
that of an unreserved category and
proceeded to draw select list accordingly.
It was further submitted that since the
candidature of the petitioner, while
drawing the select list dated 04.01.2013
was, admittedly, taken in the unreserved
category, there was no justification to
cancel his candidature subsequently, on
the ground that he failed to provide the
certificate of his belonging to Other
Backward Class. The learned counsel for
the petitioner also drew attention of the
Court to paragraph no.20 of the writ
petition where it has been specifically
stated by the petitioner that he had
secured marks higher than the marks
secured by the last candidate selected
under the unreserved category. The
learned counsel for the petitioner further
drew attention of the Court to paragraph
no.22 of the writ petition where it has
been stated that the petitioner is even
otherwise within the permissible age limit
and has not claimed any relaxation in the
upper age on account of belonging to
Other Backward Class. Referring to
paragraph no.8 of the counter affidavit the
learned
counsel
for
the
petitioner
submitted that there is no specific denial
to the averment of the petitioner that he
was placed in the select list as an
unreserved category candidate. It has thus
been submitted that cancellation of the
candidature
of
the
petitioner
and
consequential deletion from the select list
is wholly arbitrary and, as such, liable to
be quashed.

6. Per contra, Sri V.P. Varshneya,
learned counsel for the respondent no.3,
submitted that as the petitioner had given
an undertaking, on 20.11.2012, that if he
fails to provide certificate by 11.12.2012
that he belongs to "Other Backward
Class" then his candidature may be treated
as canceled, the petitioner cannot have
any grievance if his candidature has been
canceled on the ground that he failed to
provide certificate of his belonging to
Other Backward Class. Sri Varshneya
further placed reliance on paragraph 6 of
the advertisement, which provided as
follows:

"If the claims of the candidates given
in their applications are not found true,
they can be debarred from all the future
examinations and selections made by the
Commission including other appropriate
penalties."
1278 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Relying on the aforesaid clause
Sri Varshneya submitted that as the
statement of the petitioner that he
belonged to Other Backward Class was
not substantiated by the certificate it
should be treated as a false statement and
on this ground itself, the petition deserves
to be thrown out.

8. Having considered the rival
submissions of the learned counsel for the
parties as also from the record, we find
that by virtue of General Instruction
No.11, as contained in the advertisement,
the candidature of the petitioner could not
have been canceled merely on his failure
to provide a certificate of his belonging to
Other Backward Class. By virtue of the
said instruction, the Commission ought to
have
treated
the
petitioner
as
an
unreserved
category
candidate.
The
undertaking given by the petitioner would
not enable the Commission to cancel the
candidature of the petitioner as an
unreserved
category
candidate,
particularly, when the Commission is
bound by its own terms and conditions
laid in the advertisement. No doubt, the
Commission is at liberty to cancel the
candidature of the petitioner as a
candidate belonging to Other Backward
Class. But cancellation of his candidature
altogether even in the unreserved category
is arbitrary and against the own terms laid
by the Commission in the advertisement
i.e. General Instruction No.11.

9. The argument on behalf of
Commission that the candidature of the
petitioner
could
be
canceled
under
paragraph no.6 of the advertisement does
not appeal to us. Paragraph 6 of the
advertisement relates to the consequences
that befall on a candidate when any
declaration made by him is not found to
be true. Mere inability to file a proper
certificate in support of his claim that he
belongs
to
OBC
category,
without
anything further, should not be taken that
the statement that he belong to the Other
Backward Class was not true, particularly,
when there is nothing to indicate that the
said statement was false. From the
counter affidavit we do not find that the
Commission found the claim of the
petitioner in this regard to be not true. The
stand in paragraph 8 of the counter
affidavit is to the effect that as the
petitioner did not submit the required
OBC certificate, in support of his
application,
his
candidature
stood
canceled. In such circumstances, we are
of the view that the Commission cannot
take recourse to paragraph 6 of the
advertisement to justify its action.

10. For the reasons recorded above,
we find that the Commission was not
legally
justified
in
canceling
the
candidature of the petitioner altogether.
The proper course for the Commission
was to treat the petitioner as an
unreserved category candidate and to
place him in the select list subject to his
having
qualified
as
an
unreserved
category candidate.

11. Before parting, we may observe
that from the record it appears that the
statement of the petitioner, made in
paragraph no.20 of the writ petition, that he
secured marks higher than the marks secured
by the last candidate under the unreserved
category and, as such, was shown as selected
under the unreserved category in the result
dated 04.01.2013 has not been specifically
denied in paragraph no.8 of the counter
affidavit filed by the Commission, which
deals with the reply to the averments made in
paragraph nos.20, 21, 22, 23, 24, 25, 26, 27
3 All] Constable No. 52617(830740060/830740044) Asghar MehdiVs. State of U.P. and Ors. 1279
and 28 of the writ petition. However, we
refrain ourselves from expressing any
conclusive opinion in this regard, inasmuch
as, against the name of the petitioner
"provisional" was mentioned in the select list
dated 04.01.2013. Therefore, we leave this
issue to be considered by the Commission.

12. For the reasons detailed above, the
writ petition deserves to be allowed and is,
accordingly, allowed. The cancellation of the
candidature of the petitioner by the Public
Service Commission, U.P. for the post of
Lecturer in Mechanical Engineering, in
relation to the Advertisement No.6 of 20112012 dated 17.03.2012, is hereby quashed.
The Commission is directed to consider the
case of the petitioner as a candidate
belonging to the unreserved category and if
the petitioner is found to have succeeded as
an unreserved category candidate he would
be provided all consequential benefits.

13. The aforesaid exercise will be
completed by the respondents within a
period of three weeks from the date of
production of a certified copy of this
order before the respondent no.3.

14. There is no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.42061 of 2013

ConstableNo.52617(830740060/83074004
4) Asghar Mehdi ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri S.K. A. Rizvy, Sri S.Z.A. Rizvi
Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226- Service LawTransfer
order
challenged
on
grounddisciplinary proceeding pending since longsecondly being handicapped person can not
be
transferred-held-since
petitioner
remained posted for last 30 years at same
place-no bar about transfer during pendancy
of disciplinary proceeding-transfer being
exigency of service-can not be claimed a
particular place as matter of right-petition
dismissed.

Held: Para-5
So far as pendency of departmental
proceedings
before
Tribunal
is
concerned,
that
cannot
bar
the
authorities concerned from transferring
petitioner and in particular in exigency of
service on administrative ground when
the authorities find that during pendency
of
departmental
proceedings
the
petitioner must be transferred. It is not
the case of the petitioner that the
impugned order of transfer is against
statutory rules or has been passed by an
authority not competent to do so or is
vitiated on account of mala fide. The
service of the petitioner are transferable.
The transfer being exigency of service,
an employee is liable to be transferred
from one place to another and normally
no case for interference in Court of law is
called for unless the case is within
categories, as mentioned above.

Case Law discussed:
1999(2)UPLBEC 1407; AIR 2012 SC 232; 2009
(8) SCC 337; JT 2009 (2) SC 474; 1990(Supp.)
SCC 738; 1995(2) SCC 570; 1999 SCC(L&S)
646; AIR 2006 SC 2064; W.P. No. 6095(S/S)
of 1996.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This writ petition is directed
against the order of transfer dated
29.07.2013 passed by Commandant BGroup PAC 4th Battalion Allahabad.